Neighbor to the Assassin: Transitional Justice in Guatemala

April 1982. The tiny village of Chel, Guatemala. It is dawn.
Convinced that the community is aiding the guerrillas who have
been fighting the government since the 1960s, the Guatemalan
army surrounds the town. Many of the village's men have already
left for work in the fields, but the women, the children, and
the elderly are at home. The soldiers herd the villagers together,
torturing some, raping others. Then the people are forced to
remove their clothes. The adults and older children are taken
to a wooden bridge spanning a deep gorge. They are hit on the
back of the head with machetes, and their bodies fall into the
rushing water. With their clothing, the soldiers build a bonfire
where they toss the infants. Then they burn the village to the
ground.

At the Guillermo Torriello Foundation,
demobilized guerillas display a mural
showing the reincorporation of former
combattants.

The 100 people who died at Chel that day represent a small
fraction of the more than 150,000 deaths and 50,000 disappearances
that marked Guatemala's 36-year civil war. Although peace accords
brought an end to open fighting in 1996, the journey toward
true peace must navigate this history. Demobilized soldiers
and guerrillas are returningsometimes to the same communitiesand
together with noncombatants, they must try to rebuild a civil
society. That means people may be living next door to the person
who murdered their father or raped their sister. Are the perpetrators
of such violence going to be brought to justice? If so, what
would such justice look like?

Some Models

Of course, Guatemalans are not alone in confronting these
questions. The history of the 20th century is rife with examples
of countries confronting a legacy of political violence, most
prominently the de-Nazification of Germany. Though each country's
experience is unique, it's worthwhile to note some models of
transitional justice, which might provide insight into Guatemala's
options.

Spain's approach sits at one end of the spectrum. At the conclusion
of the Spanish Civil War, Francisco Franco coldly eliminated
many of his republican opponents and instituted a series of
repressive policies. But as Spain moved gradually toward its
current parliamentary monarchy, the crimes of the Franco regime
were never punished. On the contrary, King Juan Carlos issued
a royal amnesty for many convicted of political crimes, and
police files detailing the behavior of officials remain sealed.
Adolpho Suárez Gonzáles, prime minister during
the transition, commented, "The question is not to ask people
where they are coming from, but where they are going to."

A totally opposite approach was taken by Greece. Under the
military junta that ruled Greece from 1967 to 1973, torture,
purges, and other repressive measures were common. When Constantine
Karamanlis returned the island to civilian rule, he immediately
began a program of "dejuntafication." According to Neil Kritz,
editor of Transitional Justice, Karamanlis "dismissed
or replaced over 100,000 people in the military, in government
down to the local level, and in state organizations.... Within
six months, criminal proceedings were initiated against more
than one hundred former officials."

South Africa's current experience might represent a middle
way. Citizens there must testify before a truth commission about
any crimes they may have committed under the apartheid regime.
If they tell the truth and ask for forgiveness, they may be
eligible for amnesty. These three examples are drawn from countries
that have made relatively successful transitions from authoritarian
regimes to democratic civil societies. Unfortunately, there
are just as many instances where these same approaches have
failed. Burying the hatchet seems not to have worked in the
former Yugoslavia, where the wrongs of the Second World Warand
even the Ottoman periodwere reanimated by the Serbs to
provide justification for a horrifying program of ethnic cleansing.
In Argentina, an executive pardon from the prime minister undercut
the convictions of numerous former junta members and military
officers who committed human rights abuses.

Political Realities

The question of justice is a moral one, but it is answered
within specific political parameters. In his essay, "Justice
After Transitions," Jamal Benomar, formerly with the Office
of the High Commissioner for Human Rights, puts it this way:
"There are no hard and fast rules or easy answers about how
to resolve the dilemma of bringing violators to justice. Official
policies on this issue have been dictated not only by strict
principles of justice, but also by the need to balance ethical
and legal concerns with the hard realities of politics. The
balance of power between the forces that represent the past
and the democratic forces that lead the transition has proven
to be the determining factor in the policy of many governments
on this issue."

Before we look at rights and wrongs in post-war Guatemala,
it's important to lay out some of the political realities. First,
the war was a particularly ugly conflict, in which terror was
used to keep the civilian population under control. It was commonplace
for activists, union members, and dissidents to disappear from
their homes, only to turn up later as mutilated corpses tossed
into the street. A scorched-earth campaign begun by government
forces in the early 1980s eliminated more than 400 villages.

The preponderance of such acts were committed by the Guatemalan
military. A recent report by the Project to Recover the Historical
Memory (REMHI), a program of the Catholic Church, concluded
that 80 percent of the human rights abuses were committed by
the military, 10 percent were perpetrated by the guerrillas,
and another 10 percent were of unknown origin.

The officers who were responsible for these violations are
still highly placed in the military; they were not defeated
by the guerilla forces. No side "won" the civil war. Guatemala's
peace accords represent a negotiated agreement between the government
and the guerrillas.

As such, the accords form a remarkable document, which provides
for much more than a cessation of hostilities. The peace accords
include provisions on social and economic development, on the
rights of the indigenous Mayans, on the reincorporation of soldiers
and guerrillas into civil society.

Impunity

But the implementation of the peace accords has been a frustrating
process. One of the impediments, many believe, is a lack of
faith in the Guatemalan justice system: Too many people literally
get away with murder.

Fernando Moscoso Moller is a member of the Guatemalan Forensic
Anthropology Team, which conducts exhumations of massacre sites
to determine what really happened during the war. He says, "In
each community where we work, we always ask what the people
hope to see, and they always say 'justice.' In many of these
communities, the people must live side by side with the perpetrators
[of these massacres], and they feel the perpetrators will mock
them because there's been no justice. The peace process can't
be consolidated if there is no justice."

A poster displayed in many human rights organization offices
has the same message. Above a stylized dove of peace is the
inscription, "Where impunity ends, peace begins."

The end of impunity may take many forms, and Guatemalans differ
on the best path to take. Justice might mean trials and punishment
for human rights abusers. It might simply be setting the historic
record straight. Or it might require apologies from those responsible
for the atrocities.

Punishment

Maria Puj, a leader of the national war widows' organization,
CONAVIGUA, makes the case for retribution: "What the women in
my group say is, 'The men who killed our husbands are free;
they have money; they live in nice houses, while our husbands
are rotting in the ground. We want the killers to be punished.'"

But prosecutions for human rights violations were made less
likely with the passage last year of the Law of National Reconciliation.
"This law was practically an amnesty, especially for those members
of the military responsible for hundreds of killings and disappearances,"
says Amilcar Mendez, a longtime human rights activist now a
member of the Guatemalan Congress. "It amnesties the acts of
the government or the guerrillas during the war, and it puts
the burden of proof on the victims to show that the perpetrators
do not fall into a category covered by the amnesty."

Although there is some debate about whether the Law of National
Reconciliation violates international human rights standards,
the current Guatemalan government shows no inclination to challenge
its provisions. Here, some history may be instructive. In 1986,
the Guatemalan armed forces gave control of the government to
a civilian president, Vinicio Cerezo; but before the turnover,
they declared an amnesty for themselves. Cerezo told Aryeh Neier,
at that time executive director of Human Rights Watch, that
repudiating the amnesty would have spelled the end of his government.

Neier comments on situations such as Guatemala's:

Permitting the armed forces to make themselves immune to
prosecution for dreadful crimes seems intolerable; yet it
also seems irrational to insist that an elected civilian government
should commit suicide by provoking its armed forces. This
dilemma illustrates the fragility of most of the elected governments
that have recently taken over from dictatorships. On a matter
that is crucial to the military, the commanding officers still
wield decisive power. Yet if the new civilian governments
are to evolve into genuine democracies, it is essential that
the rule of law should prevail and that the armed forces should
be subordinated to democratic rule.

Recovering the Historical Memory

Whether or not punishing the powerful proves possible in Guatemala,
another route toward justice may be through simple truth telling.
Again and again, Guatemalans stress the need for an honest account
of what happened, both as a necessary step toward reconciliation
and as a preventive measure.

"The thinking of many groups-the families of the disappeared,
unionists, indigenous-is that what they really want is to know
the truth: who was responsible for what," says Mendez. "We can't
forgive if we don't know what happened. Our history has been
so tragic and violent; we want the children to learn about it
in school so they don't return to the same errors." As part
of the peace accords, Guatemala set up a truth commission, which
was charged with recording the human rights abuses of the civil
war period. But the commission was originally slated to operate
for only six months. Later the mandate was extended to one year.
Still, "that was extremely short for a war that lasted 36 years
in a country with 23 different languages and distinct cultures,"
Moscoso Moller says. Also, the commission was instructed not
to name any names.

Children perform a song at a shelter for
war widows and orphans run by CONAVIGUA.

Among the many groups who felt this commission would be inadequate
was the Catholic Church. Even before the end of the war, the
Archdiocese of Guatemala began REMHI, which has now collected
over 6,500 firsthand testimonies about what happened during
the war.

In its official report, REMHI does not name perpetrators,
except for responsible government officials. "We wanted the
report to create a social reconstruction, not be a cause of
conflict," says Graciela Asmitia of the REMHI project. "Some
of the perpetrators continue to live in their communities. Often
they are very powerful, and the people have to live with them."
But the REMHI archives do detail who did what and may eventually
be used as the basis for future prosecutions.

Dangerous Truths

In the meantime, the four-volume report, titled "Nunca
Mas" (Never Again), was published in April. A few days
after its release, Bishop José Juan Gerardi, national
coordinator of the REMHI project and director of the Archdiocese
Human Rights Office, was killed outside his home, an assassination
many take to mean that powerful elements in Guatemala still
don't want the truth to come out.

In their essay "Transitions From Authoritarian Rule: Tentative
Conclusions About Uncertain Democracies," Guillermo O'Donnell
and Philippe Schmitter address the dilemma countries such as
Guatemala face. They point out the dangers of exposing the past,
especially when it is raw to both victims and victimizers. But
they go on to say:

Superficially, this may seem to suggest that it is better
(or at least more prudent) in such cases just to bury the
past and get on with the future.... [However] it is difficult
to imagine how a society can return to some degree of functioning
which would provide social and ideological support for political
democracy without somehow coming to terms with the most painful
elements of its own past. By refusing to confront and to purge
itself of its worst fears and resentments, such a society
would be burying not just its past but the very ethical values
it needs to make its future livable.

So far, the bishop's death seems not to have intimidated those
who wish to tell the truth. More people are volunteering to
give testimony because of their indignation over the attack,
Asmitia reports. Even perpetrators are coming forward.

A basic recommendation of the REMHI report is that the guilty
on both sides acknowledge what they did and ask forgiveness
from the Guatemalan people. Neither the government nor the guerrillas
have yet followed this recommendation. Both sides say they are
studying the document.

Reconciliation

In the meantime, some hope that the very process of truth
telling can have a restorative effect. REMHI, Asmitia says,
"was not just about cases and statistics. It was also about
listening." As they told their stories, "people were recovering
their dignity, and we were accompanying them in this process."

Moscoso Moller has observed the same phenomenon as the Forensic
Anthropology Team exhumes massacre sites. "The same men who
buried the bodies of the slain helped us to dig them up [for
forensic examination]," he says. "Being involved, they became
protagonists, not simply observers.... This is part of the process
of democratizing. It's difficult for people to see the skeletons,
but they know that the pain they are going through is beneficial.
They hope that if the world knows what happened, they will receive
compensation for their suffering."

Through the recovery of memory, some communities are trying
to reconcile former enemies. Asmitia recounts the experience
of a village in the Quiche district, one of the regions of Guatemala
hardest hit by violence: A mental health team from the REMHI
project worked with the community, dividing them into groups
that looked at the history of the village before, during, and
after the violence.

"There was a role for everyone," Asmitia says. "The old people
gave the history; the women talked about the family and the
home; the men talked about the structure; the children showed
where they played and went to school."

Each group created a banner to illustrate their conclusions.
The perpetrators of the violence, some of whom still lived in
the community, were drawn in red to signify that they were dangerous.
But the center of the final banner was white, to represent hope.

A Legacy of Violence

Another group trying to effect reconciliation is the Guillermo
Torriello Foundation, a project of the URNG (National Guatemalan
Revolutionary Unity), the umbrella organization for the various
guerilla groups. Lydia Santos, coordinator of the regional office
in Quetzaltenango, describes a series of forums her group has
been sponsoring: "We are asking, What attitudes are needed to
create a climate of tolerance so that the incorporation [of
ex-guerrillas] can go forward?" To this end, the foundation
is bringing together heads of the military bases, members of
the civil patrols, mayors, and ex-guerrillas to talk about compliance
with the peace accords.

"For them, it's not easy, and it's not easy for us, either,"
says Santos, "but we consider this work very important."

In both ex-guerrillas and ex-soldiers, Guatemala has a generation
of young people who were raised in a climate of violence. Within
the experience of many young Guatemalans is forced military
service, often including participation in atrocities. For others,
who fled to the mountains to join the guerrillas, the rhythms
of peaceful life never developed.

Valerio Ramirez, a former guerilla, is now one of a group
of ex-combatants trying to build a new life on a cooperatively
owned coffee plantation. "It's a difficult transition," he says.
"After 15 or 20 years in the mountains, it's been a long time
since many of us have held machetes. Some grew up in the mountains
and had to learn from scratch."

Guatemala's struggle is Ramirez's writ large. "During the
last 40 years, there has been little attention to civil institutions
and little attention to people," U.S. Ambassador to Guatemala
Donald Plante observes. "The Pan American Highway turned to
dust, police were nonexistent, democratic institutions were
ignored. Now, even though the fighting has ended, the country
still needs to find its soul."

The views expressed on this site are the author's. The
Markkula Center for Applied Ethics does not advocate particular positions
but seeks to encourage dialogue on the ethical dimensions of current
issues. The Center welcomes comments
and alternative points of view.